in United States law is
a guilty plea in criminal court, whereby
a defendant in a criminal case does not admit the criminal act and
asserts innocence. In entering an Alford
plea, the defendant admits that the evidence the prosecution has
would be likely to persuade a judge or jury to find the defendant guilty beyond
a reasonable doubt [but continues to maintain innocence].

The Court of Appeals began by outlining how the prosecution
arose:

Sergeant Stephen Anders of the Bedford
County Sheriff's Office (assigned to the Southern Virginia Internet Crimes Against
Children Task Force) conducted an authorized, remote undercover investigation
into the online sexual exploitation of children on the internet. On August 29,
2011, a certain internet protocol (IP) address of 174.66.3.142 caught his
attention. Anders suspected this IP address was involved in the collection and
sharing of child pornography.

On September 1, 2011, through a program
called `Shareaza LE,’ Anders
was able to connect to, and begin downloading, a known file of child
pornography from IP address of 174.66.3.142. On September 2, 2011, and on
September 4, 2011, Anders again was able to connect to the IP address of
174.66.3.142 and begin to download child pornography files.

Anders also obtained and submitted an administrative
subpoena to Cox Communications, the owner of the IP address at issue. In
response to that administrative subpoena, Cox Communications informed Sergeant
Anders that the IP address had been issued to Marvin Rideout of New Kent,
Virginia.

On December 15, 2011, after verifying that
`Marvin Rideout’ was, in fact, the suspect detected by Anders, Detective J.
McLaughlin, III, of the New Kent County Sheriff's Office, obtained a search
warrant for [Rideout’s] residence. McLaughlin executed the
search warrant at [his] residence on the following morning. When McLaughlin
explained to [Rideout] why he was there, [he] put his head down and said, `I
have been waiting for y'all to come.’ Anders then analyzed various electronic
items seized from [Rideout’s] home, finding many images and movies depicting
child pornography.

Rideout v.
Commonwealth, supra.

That brings us to Rideout’s pretrial motion to suppress
evidence.He moved to suppress

the three files of child pornography
giving rise to the search warrant (i.e., the files Anders was able to access on
September 1, 2, and 4 of 2011), as well as all of the files found as a result
of execution of the search warrant.

At the suppression hearing, [Rideout]
testified he had downloaded a software program called `Shareaza’ somewhere
between two and three years prior to the suppression hearing. Shareaza is,
according to [Rideout’s] expert Eric Myer, designed to facilitate the sharing
of files -- 1it wants to share.’ As Anders also explained, with respect to
peer-to-peer sharing programs like Shareaza, `the whole purpose is for
everybody to share.’

[Rideout] had previously used a
peer-to-peer file sharing program called Limewire for several years prior to
downloading Shareaza, so he had several years of experience with peer-to-peer
software. [He] explained that, when he initially downloaded the Shareaza
software, he had applied settings that he thought would prevent others from
being able to access files on his computer.

According to the theory advanced by [Rideout]
at the suppression hearing, despite selecting settings on Shareaza to prevent
sharing, . . . when [he] changed the location of the downloads from the default
destination, he inadvertently activated the sharing of that folder without
receiving any notification that he was actually sharing files.

Thus, [Rideout] claimed at the
suppression hearing that he had been using the Shareaza software under the
mistaken impression that he had set up Shareaza in a way that would prevent
other users from gaining access to any files on his computer.

Rideout v.
Commonwealth, supra.

At the time of the hearing on the motion to suppress,
Rideout and the prosecution

stipulated to certain facts, including:
(1) that any efforts [Rideout] made to block access to his computer were
ineffective when Anders was able to obtain the three child pornography files
from [his] computer, and (2) that law enforcement `did not “hack” or otherwise
use nefarious means’ to gain access to [Rideout’s] computer, but did so only
through a modified version of Shareaza (that was designed to prevent the police
from sharing child pornography with others).

Rideout v.
Commonwealth, supra.

Rideout argued that despite his use of Shareaza, he had a 4th
Amendment expectation of privacy in “the contents of his personal computer,
including the files depicting child pornography, because he contended that he
had applied settings to Shareaza that he thought would prevent others from
accessing those files on his own computer.”Rideout v. Commonwealth, supra.

As Wikipedia explains, and as I have noted in prior posts,
the 4th Amendment’s prohibition on “unreasonable” searches applies
when law enforcement officers intrude into an area in which someone has a
“reasonable expectation of privacy.” Rideout was claiming he had such an
expectation of privacy in his computer, which would mean Anders’ accessing his
computer and downloading files was a “search” that violated the 4th
Amendment because it was not justified either by a search warrant or an
exception to the warrant requirement. For more on that, check out Wikipedia on the 4thAmendment.

The Court of Appeals took up Rideout’s argument, noting,
first, that to have a reasonable expectation of privacy in a place or thing, (i)
the person must subjectively believe it is private and (ii) society must accept
that expectation as objectively reasonable. Rideout
v. Commonwealth, supra. For more on that, check out this prior post.

The court noted that

[e]ven though [Rideout] testified that
he was under the impression that he had disabled the sharing feature on
Shareaza, the record establishes that [he] actually said to McLaughlin, `I have
been waiting for y'all to come.’ Viewing the evidence in the light most
favorable to the Commonwealth, as we must since it prevailed below, this
statement in itself strongly suggests that [he] knew or at least suspected that
files from his computer were able to be shared.

Indeed, a rational trier of fact
assessing the testimony at the suppression hearing could infer from this
statement that [Rideout] was aware he was not the only individual with access
to those files due to his installation of the Shareaza program. Certainly, the
trial court was not obligated to believe [his] self-serving testimony that he
believed he had safeguarded his files containing child pornography from being
shared on Shareaza --which, of course, is peer-to-peer software actually designed
for the sharing of files over the internet. . . .

Rideout v.
Commonwealth, supra (emphasis in
the original).

The Court of Appeals explained that the trial court judge

expressly found [Rideout] lacked a reasonable
expectation of privacy `when he installed a software program on his computer
which has the primary purpose to share information among other computer users.’
We, like the trial court, find several federal appellate court decisions to be
applicable and instructive on this point.

‘”Although as a general matter an individual
has an objectively reasonable expectation of privacy in his personal computer,
we fail to see how this expectation can survive [appellant's] decision to
install and use file-sharing software, thereby opening his computer to anyone
else with the same freely available program.”’ U.S. v. Stults, 575
F.3d 834 (U.S. Court of Appeals for the 8th Circuit 2009) (quoting U.S.
v. Ganoe, 538 F.3d 1117 (U.S. Court of Appeals for the 9th Circuit 2008)).

Thus, by simply installing file-sharing
software onto his computer, [Rideout] has “’failed to demonstrate an
expectation of privacy that society is prepared to accept as reasonable.”’ U.S. v. Stults, supra. [His]
installation of Shareaza presents a situation that is analogous to a person who
hands over the keys to his house to a number of friends. That person should not
be surprised when some of those friends simply come inside his house without
knocking on the door.U.S. v. Stults, supra.

Rideout v.
Commonwealth, supra.

The court also noted that Rideout

contends . . . that his claimed attempt
to apply settings to Shareaza to prevent others from accessing his files
depicting child pornography creates an objectively reasonable expectation of
privacy in those computer files. However, the decision in U.S. v. Borowy,
595 F.3d 1045 (U.S. Court of Appeals for the 9th Circuit 2010), is highly
persuasive on the facts here.

In Borowy, the defendant
claimed he had attempted to engage the feature in his version of peer-to-peer
file-sharing software that would prevent others from downloading and viewing
his files. However, that feature was not actually engaged, and an FBI agent was
able to access incriminating files from the defendant's computer.U.S. v.
Borowy, supra.

Concluding that the defendant's `subjective
intention not to share his files did not create an objectively reasonable
expectation of privacy in the face of such widespread public access,’ the
appellate court affirmed the lower court's decision to deny the defendant's
motion to suppress. U.S. v. Borowy,
supra.

Applying
the logic in Borowy to this case, therefore, even assuming
without deciding that [Rideout] actually had the subjective intention to
prevent others from accessing his files, [he] still did not have
an objectively reasonable expectation of privacy in those files, given his
decision to install the Shareaza file-sharing program on his computer.

Indeed, [Rideout] installed software on
his computer that is specifically designed to share files from one's own
computer with other users of that software. By installing the Shareaza
peer-to-peer file sharing software on his computer, [he] assumed the risk that
other users of Shareaza -- including the police -- could readily access those
incriminating files that could be shared through Shareaza.

Rideout v.
Commonwealth, supra.

The Court of Appeals therefore held that

[v]iewing the evidence in the light
most favorable to the Commonwealth, as we must since it was the prevailing
party below, the circumstances here do not establish a reasonable expectation
of privacy by [Rideout] in the contents of the incriminating files that [he]
actually shared via the Shareaza software -- and certainly do not require
exclusion of the child pornography seized from [Rideout’s] computer.

The trial court did not err in denying [his]
motion to suppress that evidence, and, accordingly, we affirm [his] twenty
convictions for possession of child pornography.